however free they were under their own law not to abide by ours. Where
local services are involved, we would protect the public against restraints
by professionals and others in local markets, while recognizing the
prerogative of states to regulate statebound activity. In short, if the law is
nourished, and not severed from its roots, we believe that antitrust will be
equal to the challenges of the twenty-first century.
We offer a prediction and an assessment. First, the courts will slay the
paper dragon from Chicago. Second, antitrust, no cure-all for economic or
social ills, will continue to develop incrementally and make a wholesome
contribution to the resolution of the problems that may arise within its
For historical accounts of the law that reflect its core values, see, e.g.,
H. Thorelli, The Federal Antitrust Policy: Origination of an American Tradition 108-63 ( 1954); Letwin, Congress and the Sherman Antitrust Law. 1887-1890, 23 U. Chi. L. Rev. 221
( 1955); see also sources cited in notes 25-46 infra.
See, e.g., Flynn, The Misuses of Economic Analysis in Antitrust Litigation, 12 Sw. U.L.
Rev. 335, 337 ( 1981); Sullivan, Anticipating Antitrust's Centennial: The Viability of the
Current Law on Horizontal Restraints, 75 Calif. L. Rev. 835 ( 1987).
Before the Civil War the rate of growth of output per capita was less than 1.5
percent; between 1870 and 1900 it was over 2 percent.
W. Brownlee, Dynamics of Ascent
26 9 ( 1979).
Between 1840 and 1880 the distribution of population in cities larger than 2500
persons more than doubled from 11 to 28 percent of the national population. That
number would almost double again by 1920, with just over half of the population residing
in urban areas. American Economic Growth: An Economist's History of the United
States 131 (
R. Easterlin &
W. Parker eds. 1972) [hereinafter Economic Growth].
Rates of capital accumulation by individuals, while relatively high during the
antebellum years (approximately 15 percent of the gross national product), rose to 28
percent of the gross national product by the 1880s.
W. Brownlee, supra note 3, at 277.
Typically, those who grew through a strategy of vertical integration did so in
response to problems either in marketing their products or in acquiring a steady supply
and uniform quality of raw materials for their manufacturing operations. In the case of
the dressed beef industry, Gustabas Swift was forced to build a distribution network of
branch houses to store and to sell his chilled beef. After Swift's expansion into marketing,
the company quickly became a complex, big business. G. Porter, The Rise of Big Business 48-49 ( 1973).